Johan Dybdahl, Chairman
August 28, 2001

Chair Dybdahl called the regular meeting of the City and Borough Planning Commission to order at 7:00 p.m., in the Assembly Chambers of the Municipal Building.


Commissioners present: Mike Bavard; Dan Bruce; Johan Dybdahl; Maria Gladisziewski; Marshal Kendziorek, Mark Pusich, Merrill Sanford

Commissioners absent: Roger Allington; Jody Vick

A quorum was present.

Staff present: Oscar Graham, Acting Director, Chris Beanés, CDD Planner; Greg Chaney, CDD Planner

- None


Nancy Waterman, 227 Gastineau Avenue, informed the Commission about DOT’s display ad that she saw in the Juneau Empire recently. The ad announced that DOT was accepting project nominations for the 2004 to 2006 State Transportation Improvement Plan (STIP). Project nomination forms are available on DOT's website and are due October 3, 2001. She encouraged the Planning Commission, CDD staff and the Assembly to take advantage of all opportunities to participate in DOT's project identification process.





Mr. Bruce announced that he has represented the applicant and his father on a matter associated with this property and that a conflict of interest existed. Mr. Bruce recused himself from further consideration of this matter.


Conditional Use permit to create an accessory apartment within an existing detached garage.

Location: 04380 BAUER LANE

Staff report: CDD Planner Chris Beanés reviewed the Conditional Use permit application for the Commission. The proposed accessory apartment is a 576 square foot efficiency unit situated over a freestanding garage. The development meets all Land Use requirements of a D-5 zone including parking and setback requirements. Previously, the Commission approved an accessory apartment located within the house but the applicant did not act and the permit expired.

Mr. Beanés indicated that the neighbors oppose granting this Conditional Use permit based upon the condition of Bauer Lane, an unimproved and steep roadway. Concern lies with the increased traffic that they expect the efficiency apartment to generate. Previously, the applicant proposed to subdivide his property but abandoned the proposal due to the cost of upgrading Bauer Lane. A neighbor argued that since the request to add an additional lot required upgrades to Bauer Lane, why would CDD approve the proposal adding an efficiency apartment? Mr. Beanés did not believe that the efficiency apartment’s added traffic would impact the road to the degree that upgrades to Bauer Lane area necessary. The condition of the road was an issue for meeting the design standards of minor subdivisions under CBJ Code §49.15.460(a)(I)(c). This provision requires that the lot have direct and practical access to a street maintained by an agency of government. Since Bauer Lane is not maintained by the CBJ, the requirement to upgrade to acceptable standards of maintenance for the new lot was imposed. Mr. Beanés indicated that the letter from the neighbor raising this issue was received at CDD too late to be reviewed in the staff report.

Staff recommendation: That the Planning Commission adopt the director's analysis and findings and grant the requested Conditional Use permit. The permit would allow the development of a 576 square foot efficiency apartment above a detached garage in the D-5 Zone.

Mr. Pusich asked if the house contains an apartment. Mr. Beanés stated the applicant had obtained a Conditional Use permit but never pursued construction. The structure is a single-family home without an accessory apartment.

Mr. Pusich and Ms. Gladziszewski both cited written testimony claiming that there is an apartment or renters onsite. Mr. Beanés clarified that CBJ Code defines a separate dwelling unit as a unit containing a kitchen. While rooms may be rented, this house does not contain an accessory apartment because it has only one kitchen. By definition, there is only one dwelling unit on the property.

Ms. Gladziszewski indicated that she received an email from Pat Eberhardt with regard to the application. Realizing the email had been sent to Commissioners only, Mr. Kendziorek provided a copy to staff for photocopying and distribution.

Mr. Kendziorek asked staff how Bauer Street residents organized the road maintenance. Mr. Beanés said that Bauer Lane was not maintained by any government entity nor is there is an LID in place. Currently, the neighbors have an informal agreement by which the road is maintained. The City has no control or input on how the neighbors informally distribute or delegate the road maintenance responsibilities. He added that Mr. Alton had previously requested to subdivide the lot but abandoned the request due to the requirement that the street is upgraded to City standards. Bauer Lane is a dedicated right-of-way.

Chair Dybdahl invited the applicant to step forward to testify.

Chris Alton, 3330 Douglas Highway, stated that there is not now, now has there ever been two dwelling units on his property. He stated also that the current tenants do not sublet rooms.

Mr. Kendziorek asked if the tenants had ever sublet rooms on the property. Mr. Alton stated that they had not.

Mr. Kendziorek asked Mr. Alton to explain how the neighbors agreed to maintain the road. Contrary to letters, he has spent funds on the road both during the construction process and for snow plowing. To his knowledge, no one else has done anything to maintain the road.

Mr. Pusich asked if anyone had lived in the garage. Mr. Alton stated, no.

Erik Leegard, 3330 Bauer Lane, is a neighbor to the subject property. Mr. Leegard received a permit to put in a driveway when his home was constructed in 1983. That driveway is now called Bauer Lane. Since the road is not maintained by the CBJ, Mr. Leegard and his wife maintain it by hand using rakes, shovels and a pick. Regardless of their efforts, the last time there was a rain, the road washed out. Ms. Leegard responded by re-digging the drainage ditches to divert water. Within 24 hours of completing this work, a 4-wheel drive vehicle spun its wheels as it tried to get the hill to Mr. Alton's property. Mr. Leegard claims that this action destroyed the work that he had just completed. Mr. Leegard noted that at the time Alton's house was built, apartments in freestanding garages were disallowed. Even though the rules have been relaxed, Mr. Leegard believes if the decision to put in an apartment over the garage should have been at the time the home was constructed. Rules ought not to be relaxed after the neighborhood has relied on their protection. As well, the will of the neighbors should be taken in consideration when the decision to relax a zoning ordinance is contemplated. It is inappropriate to impose new regulations on an existing situation. Because Bauer Lane was a driveway that Mr. Leegard put in, it is in precarious condition. Mr. Leegard indicated that Terry Brenner, CBJ Engineering could attest to that fact. Mr. Brenner indicated a letter outlining the history of Bauer Lane would be sent to CDD staff regarding Bauer Lane. Mr. Brenner would also state that the situation would be exacerbated with the addition of more people and traffic.

Mr. Beanés indicated that Mr. Brenner had not provided CDD with any correspondence.

Mr. Leegard turned the attention of Planning Commission to his letter. Ms. Gladziszewski noted that no letters from Mr. Leegard were provided in that week’s packet, however, they were distributed in packets for the August 14, 2001 meeting. Copies of the letters were made and distributed by staff. Mr. Leegard noted that D-5 zoning is for single-family homes and duplexes. The homes in Bauer Lane are owner occupied with the exception to Lot 2. As well, all homes are single family. Mr. Leegard stated that when he built his home, the CBJ forced adherence to zoning ordinances, building codes and regulations. In turn, CBJ had an obligation to the property owners on Bauer Lane to keep that neighborhood single family unless the landowners collectively agree to a change. Historically, all owners except for Mr. Alton are opposed to anything but single-family dwellings in Bauer Subdivision.

When Mr. Alton withdrew his request to subdivide, a garage was built instead. As the roofing was going on, Mr. Leegard inquired with the Building Department about what was being built. He was told that a permit for the foundation and temporary electrical was issued. By then, however, the entire garage had been built.

Mr. Beanés interjected that a review of building permit records for the site indicated that the garage had been included with the permit for the house.

Mr. Leegard continued, stating that the house plans on file with CBJ detailed an undeveloped space downstairs except for the garage. Upon completion of the house, the downstairs contained a finished bedroom and bathroom. At that time, the CBJ recommended that Mr. Alton apply for a Conditional Use permit for the apartment in the house and the neighbors acquiesced. Mr. Leegard recalled a conversation with Mr. Alton’s partner where she stated their desire for three units on the site.

Turning to the issue of the road, Mr. Leegard distributed photographs of Bauer Lane for the Commission to view. He also pointed out venetian blinds in the garage window that demonstrating that it was, in fact, occupied. Mr. Leegard received a permit to put in the driveway from the Vance's property to his, at the top of the cul de sac. At the same time, CBJ required that he install a sewer line up to CBJ standards. Mr. Leegard noted that he personally paid for the sewer main, a manhole and for an as-built detailing the work. Mr. Leegard recalled a conversation with Terry Brenner held at that time, where he stated that the first person going in, builds the driveway. The next person developing has to bring the street up to CBJ standards to the topside of the driveway. When nothing happened, Mr. Leegard inquired and was told that regulations changed. Because the street was too steep, nothing could be done with Bauer Lane.

Mr. Leegard speaks for himself and two other landowners and request that the Conditional Use permit is denied until the street is up to CBJ maintainable standards. After that point, the neighborhood would not object to the proposal. With only the Leegards providing street maintenance, adding an additional dwelling unit presents too great a burden for them. Mr. Leegard drafted a letter to Terry Brenner requesting that the Engineering Department determine what the minimum standards are and get together with the landowners to form an LID.

Judy Leegard, states that she is the only individual who maintains the drainage ditch and the road. Ms. Leegard told the Commission that when construction of Mr. Alton's home was underway, they were very helpful. Mr. Alton used electrical outlets from the Leegard's garage and construction vehicles utilized their driveway. Concerns were raised when Alton voiced his plans to construct a duplex on the lot. When this plan was disallowed, Alton constructed a separate garage equipped with a bathroom and full electricity. Contrary Mr. Alton’s claims, relatives were living in the downstairs portion of the home while upstairs was rented and another individual was living in the garage. Ms. Leegard indicated that three individual sections of Mr. Alton's property were rented. The problem was that the street was not set up for such heavy use. When Ms. Leegard expressed this concern to CBJ, she was told that Bauer Lane was a city street and people could park where ever they wanted, including in the pullout that the Leegard's had constructed. Ms. Leegard complained that she was unable to back out of her driveway into the pullout because Alton’s renters parked there. His former partner lived in the garage and the renters were not allowed to park in that driveway or she would be blocked in. If extra parking was needed, renters were instructed to park at the top of the hill.

She also complained that vehicles departing the Alton's property continually back into a drainage ditch that was dug out by Ms. Leegard's son as a part of a Boy Scout project. Each time the ditch is driven over, it is further degraded further compounding the road maintenance burden. In the winter, Bauer Lane is extremely treacherous as the ice builds up. Ms. Leegard claims that the Alton's property regular vehicular load of 5 to 6 cars presents major problems as they search for parking. This presents an extreme hazard to children as the numerous vehicles race up the steep hill under icy conditions.

The neighborhood is an older single-family subdivision with an unimproved road that will wash out if it is not regularly maintained. The Leegards resent that the City classifies Bauer Lane as a city street where people can do whatever they want. In reality, it is a substandard driveway that the Leegards built to access their home. They’ve relied on the City's statement that the next home construction would be responsible to bring the street up to CBJ standards. Not only was Mr. Alton excused from that responsibility, his behavior has created additional maintenance problems and frustration for the Leegards. It is unfair that the City places the road maintenance burden upon the Leegards simply because they occupies the top lot in the subdivision.

Chair Dybdahl recalled the applicant prior to closing public testimony.

Mr. Kendziorek asked the applicant to describe the nature of the kitchen facilities. Was the plumbing designed to accept more than a single kitchen? Mr. Alton indicated that there was one kitchen and there was a possibility that another kitchen could be added.

Mr. Kendziorek asked if the applicant had plans to install another kitchen. Mr. Alton said that his plans have changed several times in response to financial pressures and because of the City.

Mr. Kendziorek asked if anyone had ever lived in the garage or if it had been used as some form of a residence. Mr. Alton said no, adding that the impressions held by the neighbors that someone had lived in the garage was incorrect.

Mr. Kendziorek asked if the apartment above the garage was fully constructed with a kitchen. Mr. Alton said that it was not.

Mr. Kendziorek asked if the applicant had made any attempts to assist with road maintenance other than what Ms. Leegard had stated. Mr. Alton said he did not participate in the road maintenance beyond what Ms. Leegard had claimed. However, during the construction of the property, he went to great lengths and expense making sure that he followed the CBJ's guidelines for culverts and driveways. He stated that the road has not deteriorated at all since he first arrived.

Mr. Kendziorek asked the applicant if he would support the formation of an LID for Bauer Lane and would he be willing to share in that expense? Mr. Alton stated his support. He wanted to see Bauer Lane either paved or chip sealed.

Ms. Gladziszewski asked the applicant to clarify what plumbing currently existed in the garage. Mr. Alton stated that the garage was plumbed and it contained a commode.

Mr. Bavard asked if there were a neighborhood road maintenance agreement in effect for Bauer Lane. Mr. Alton stated that there was no agreement.

Ms. Gladziszewski asked staff if the condition of Bauer Lane had been discussed with Terry Brenner. Mr. Beanés stated that the applicant requests a Conditional Use permit for an accessory apartment. In contrast, he is not requesting to subdivide his lot. While Mr. Beanés considered the road issue but determined that the apartment would increase traffic on Bauer Lane.

Mr. Kendziorek asked if there were room for four parking spaces on the Alton's property. Mr. Beanés said that there was adequate space for four parking spaces.

Planning Commission action:

Motion: by Mr. Bavard, that the Planning Commission accept staff's analysis, findings and recommendation and approve USE2001-00029.

Mr. Kendziorek was disturbed by the condition of Bauer Lane and he wasn't convinced that it was safe. However, he didn't think that adding another apartment to the area would make Bauer Lane significantly worse. As Mr. Beanés stated, the issue at hand was a Conditional Use permit for an accessory apartment. As such, would that development materially endanger the public health or safety? He didn't think that the apartment would additionally endanger the public health and safety by adding one or two more cars.

Mr. Pusich agreed. As he reviewed the findings, he couldn't see how the addition of an accessory apartment would adversely impact the neighborhood. The real issue for the area was the safety of the road, its drainage and how that has been maintained. It appears that a major drainage issue remains and it is too much to resolve by hand. He wanted to see Terry Brenner act on an LID to at least address the drainage problems.

Ms. Gladziszewski noted that Bauer Lane seemed relatively unsafe already, but will one or two more cares make it less safe? She wished that Terry Brenner were available to address the condition of the road and what steps can be taken to resolve this.

Mr. Kendziorek said he wanted to vote against this measure until the road was fixed. He agrees with the Leegards, that the road is a problem. However, he was bound by the rules at hand and reluctantly, he would support the motion.

Roll call vote:

Yeas: Bavard, Dybdahl, Gladziszewski, Kendziorek, Pusich, Sanford,
Absent: Allington, Bruce

Mr. Sanford asked what steps must be taken for the formation of an LID and what could the Planning Commission do to encourage this. Mr. Graham recommended that the area homeowners submit their letter of request to the Director of CBJ Engineering. The Planning Commission could also submit a letter in support of the neighborhood's efforts.


Chair Dybdahl announced that rather than hearing the next item, it will be remanded to a Committee of the Whole meeting for more work.


An ordinance (Serial No. 2001-16) to amend the Land Use Code to allow greater square footage for convenience stores based upon bonus amenities provided by the applicant. In addition, landscape requirements have been added to allow buffering between incompatible land uses.


Planning Commission action:

MOTION: by Mr. Kendziorek that TXT2001-00003, the Land Use Code change be moved to a Committee of the Whole meeting where it can be considered at greater length.

Realizing that public participation was at the discretion of the Chair of the Committee, Mr. Kendziorek requested that public testimony be taken at that meeting.

Mr. Bavard agreed that more work could be done to resolve the controversies of this item.

Mr. Pusich also supported the motion, adding that action should expeditious.

There was no objection to the motion and TXT2001-00003 was remanded to the Committee of the Whole. He advised staff that he wanted this item returned to the Commission as soon as possible.

At 8:05, Chair Dybdahl called a five-minute recess.

Following the recess, Mr. Pusich disclosed that a conflict of interest existed relative to USE2001-00017. The applicant has retained R & M Engineering, his employer, to work on the project. Mr. Pusich recused himself from further deliberations.

Mr. Bruce disclosed that he was hired by Ralph Horcney to review the sales agreement between himself and the applicant. Since that didn't apply to the applicant's activities or this permit, it did not pose a conflict and Mr. Bruce remained on the panel.


An Allowable Use permit for an 8,000 square foot building to be used for non-specified industrial uses. Each building is two levels with 4,000 square feet per level. One building will have a caretaker residence.

Location: 01801 ANKA STREET

Staff report: Oscar Graham, Acting Director of CDD announced that he would provide the Commission with a very detailed review of this application. He explained that a Building permit for a single story 5,000 square foot structure was approved in March 2001. The permit also included provisions for a driveway and parking area that did not rely on back out parking. The proposal maintained a 24-foot separation between the building and road for traffic circulation. Setbacks, including streamside setbacks of 50-feet were approved through a review of the surveyor's statement of setback compliance (attachment D, of the staff report). The Building permit was later amended to provide for a second story expansion from 5,000 to a total of 8,000 square feet. This expansion required approval of an Allowable Use permit per the Table of Permissible Uses. However, work began in advance of the issuance of the permit, based upon the Director's approval. An application requesting authorization of the Allowable Use permit for the building under construction plus four additional identical structures was later submitted to CDD in May 2001. On June 26, 2001, Mr. Graham conducted a site inspection of the subject property as a part of the staff report.

Mr. Graham noted that observations of the stream setback and CBJ code setback requirements constitute the main subject of the staff report and resulting controversy. To facilitate a clear understanding, he demonstrated the discussion of the streamside setback with the aid of a PowerPoint presentation.

The streamside setback requirements are based upon two provisions from the habitat requirements of Title 49:

Mr. Graham pointed to the subject building as it sat upon the property. He also identified a line of vegetation along the bank of Lemon Creek as well as other landmarks. Observations of the streamside setback suggested that the building under construction was located approximately 30-feet landward of the active channel of Lemon Creek. Subsequent review of the application materials indicate that the site plan submitted in support of the Allowable Use permit depicted a stream setback of approximately 105 feet.

Mr. Kendziorek asked what the dimensions of the building were. Mr. Graham indicated that the building was 80-feet long by 50-feet wide and the roof spans 54-feet across.

Mr. Graham continued discussing the streamside setbacks. In addition to the stream corridor and the banks, Title 49 includes the ordinary high water mark (hereafter referred to as OHWM) as a third point of reference utilized for establishing the streamside setback.

Chair Dybdahl asked if the OHWM was the same as the median? Mr. Graham said that in terms of Chapter 49, the bank, the creek corridor and the OHWM are recognized. Given the context of the example before the Commission, Mr. Graham believes that all three points are co-existent, or relatively the same.

Mr. Graham next addressed the definition of OHWM as it is a point that is often argued and it is not generally viewed as a survey point.

OHWM is a line of vegetation or a mark upon the beds and banks that is ascertained by observing the vegetation and soils along the corridor.

Demonstrating the reference points on a slide, Mr. Graham explained that the corridor is the area between a well-established line of vegetation along the south and north banks of Lemon Creek. The stream corridor exists between the two banks and the channels are braided and migrate back and forth between the banks. Mr. Graham pointed out that the existing setback from subject structure to the OHWM, which is the line of vegetation, is 31-feet. This is in contrast to 105-feet, which was stated on the Building Permit application. If the OHWM, as calculated by Mr. Graham, is 31-feet from the corner of the building, then 105-feet would be close to the middle of the stream, or the stream corridor.

He restated that the OHWM is not based upon survey data or an averaging of stream flow levels or tidal data for the marine environment. Rather, it is based upon a physical line of vegetation that is discernable on the transition from the beds of the stream to the bank. Over the years, the definition of OHWM has been augmented to include consideration of topography and vegetation communities. In the case of Lemon Creek, there is a well-vegetated bank that is very discernable.

Mr. Graham turned to slides depicting the subject building and general views of the Lemon Creek. He called attention to the conditions of the banks, the channelized nature of the meandering stream and the accretion bars in the creek. The final slide illustrated improvements to the subdivision, including improvements to the roadway. The property owner currently holds the roadway as an easement; however, in the future it may be dedicated for City use to access the mineral deposits further back in the Lemon Creek Valley. Mr. Graham illustrated the location of the building and its distance from the OHWM from Lemon Creek. He added that the proposal also includes back-out parking on to the roadway. Staff considers the back-out parking to be a hazard to public health and safety due to the heavy equipment use in the industrial area.

In closing, Mr. Graham summarized the findings on this application. At issue are Findings No. 3, 4 and 5. Staff concludes that the proposed development does not comply with the streamside setback requirement stated under §49.73.310 and §49.70.950 of the CBJ Land Use code. Specifically, the 50-foot setback is not met as the existing structure sits 31-feet from the OHWM. As well, staff found that Conditions are necessary for this request to be approved but because the Allowable Use permit is predicated on approval of a Variance that addresses the streamside setback requirement, Conditions alone are not sufficient to enable approval. Finally, because §49.70.950(e) and (f) have not been addressed, the proposal does not comply with the Juneau Coastal Management Program.

Staff recommendation: It is recommended that the Planning Commission adopt the director's analysis and findings and deny the requested allowable use permit.

Mr. Graham noted that the way to address the problem would be the issuance of a Variance permit. Mr. Graham proposed this to the applicant with the assurance that CDD would support the Variance based upon three factors:

  1. The OHWM be established at the toe of the bank where the creek transitions from flowing water and scoured river bed to woody vegetation;
  2. The applicant apply for a Variance;
  3. The applicant provides some mitigation by way of cleaning up the bank and planting riparian vegetation.

Since the Variance application had been withdrawn, staff is unable to recommend approval. In closing, Mr. Graham called attention to a memorandum provided to the Commission in their blue file. The memo contains a number of attachments relative to a plat review that the Commission considered August 2000.

1. Attachment A: the preliminary plat approved by the Commission. Mr. Graham noted that the plat did not include the OHWM or any depiction of the streamside setback.

2. Note to the file: from Brad Marshall indicating that the applicant and the project surveyor had been contacted to obtain concurrence that the preliminary plat could be included on the Consent Agenda. The note indicated that both the developer and the surveyor agreed to Conditions of approval for the plat.

3. Notice of Decision: from the Commission that approved Preliminary Plat 2000-00012 with the Conditions recommended by staff including provisions to maintain the streamside setback and placement of a note alerting future owners and CBJ staff to the streamside setback requirements.

Mr. Graham invited CDD Planner Greg Chaney to discuss how site plans are reviewed with regard to the survey certification of setback requirements to shed light on why CBJ staff approved the Building permit if the project did not meet the streamside setback.

Mr. Chaney described the process in which the plat had been reviewed. First, setbacks to cataloged anadromous streams were checked. On the site plan, this was depicted as well beyond the 50-foot setback requirement. While the plan was approved, all Building permits are issued with the requirement that, prior to the pouring of concrete, a Setback Verification form must be approved by the CBJ inspector. In this case, the inspector was presented with a certification form signed by a licensed surveyor stating that the subject foundation wall exceeded the 50-foot setback to the OHWM. The inspector considered that signed and stamped form as acceptable verification that setback had been met.

Mr. Chaney noted that there have been other instances when a discrepancy came to light following the pouring of the concrete. However, this situation is unusual because the discrepancy is so great.

Mr. Kendziorek asked for clarification on the setback from the corner of the building. The survey indicated that the closest corner of the building was 105-feet from the OHWM? Mr. Chaney stated that 105-feet was shown on the site plan.

Mr. Graham added that the OHWM was never designated on any site plans or plat maps that he reviewed. The applicant’s use of OHWM was consistent with a survey-type definition such as "meander line" or "edge of the channel" at a certain point in time. The applicable point of reference for the OHWM: the stream corridor or the bank of the creek was not used to calculate the setback by the surveyor.

Ms. Gladziszewksi asked staff to clarify several points. First, the Building permit was based upon a plan indicating the building would be 105-feet from the OHWM. Mr. Chaney recalled from the plan review that the building exceeded the requirement of ‘50-feet from the stream channel.’ The distance was more than double the required distance.

Ms. Gladziszewski asked if the discrepancy was that the Certification signed by Mark Johnson states that the distance was more than 50-feet but following CDD's site visit, the distance was observed at 31-feet. Mr. Graham referred the Commission to Attachment D (in the staff report), to show that the edge of the creek as seen at March 2000 was used as the point of reference to calculate the streamside setback. Consequently, the setback was calculated from a channel edge during a period of low flow. The discrepancy results from not calculating the setback from the applicable point of reference: the OHWM, or the stream corridor or the bank of the creek, but rather a channel edge during a period of low flow.

Ms. Gladziszewksi summarized that Mr. Johnson's measurements result from counting from the wrong line? Mr. Graham thought that to be the case, based upon the site plan.

Mr. Bavard asked how it came about that the situation was before the Commission? Mr. Graham stated the discrepancy came to light following the site inspection as a part of the Allowable Use permit application. The expansion from 5,000 square feet to 8,000 square feet requires an Allowable Use permit.

Mr. Kendziorek asked why the Variance request was withdrawn. Mr. Graham deferred to the applicant.

Mr. Bavard noted that the original proposal did not include back-out parking. Was this now necessary because the building's proposed increase in size? Mr. Graham did not know what the rationale was.

Mr. Chaney added in closing that the actual form signed by the surveyor, states, "50-foot setback from ordinary high water of Lemon Creek."

Public testimony:

Malcom Menzies, is a registered Land Surveyor who conducted the March 2000 survey that established a meander line. Mr. Menzies regretted that his travel schedule prevented the opportunity to meet with Mr. Graham prior to the hearing because he was confident that the issue could have been resolved. As it stands, he respectfully disagreed with Mr. Graham's analysis. Mr. Menzies began by introducing his qualifications to the Commission and staff. He came to Alaska to survey in 1960; in 1965 he became a Registered Land Surveyor and in 1969 became a Registered Civil Engineer. In 1976, he became one of 26 Registered Mineral Surveyors in the United States.

During the course of his career, Mr. Menzies has conducted many meander line surveys. Much of his work has been for the CBJ including Twin Lakes, the Mendenhall Game Refuge and the Juneau airport. Additionally, he's published two technical papers on meander lines in Southeast. The subject of these papers is that Alaska is unusual because of accretion and melting glaciers, etc. He's been an expert witness in court on state, federal and private meander line questions. Notably, Mr. Menzies has appeared in court as the CBJ's expert witness in support of their position on meander lines.

Mr. Menzies distributed a packet of materials to the Commission to illustrate his presentation. He indicated that the dispute comes down to what is the Ordinary High Water line. Mr. Graham states that OHWM is very simple it is along the bank or the vegetation line. Mr. Menzies disagreed. After 40 years of experience working with Lemon Creek, he identifies eight banks exist in the vicinity of the subject building. Another factor to consider is that Alaska has two types of flooding: floods caused by rain and precipitation and floods caused by nice weather that causes the glaciers to melt.

In March 2000, he personally conducted the land and topographic survey of the area. In March 2001, he began the certification for the foundation; however, he was called to another job and Mark Johnson completed the survey. During his work, Mr. Menzies polled the stream from the corner of the building to the stream. Mr. Menzies states that to Alaskan surveyors, the terms, ordinary high water mark, high water line, and meander line are the same thing. It identifies where the flow at the normal times of the year and not during the flood times is. Mr. Menzies referred Commissioners to his handouts:

Mr. Kendziorek asked for clarification. Mr. Menzies stated his opinion that Lemon Creek’s inner channels are considered to be the ordinary high water, while the outer channels are flood channels. Mr. Menzies states that his profession has taught this method of surveying for the past 40 years.

Mr. Menzies states that the only time his readings have been challenged in court has been by regulatory professionals. For example, when Twin Lakes was surveyed, the CBJ honored accretion. However, when the Mendenhall State Game Refuge was surveyed, the State did not honor accretion. The Refuge boundaries go to the meander line where it was surveyed in 1918 - 1950's. Of course, there has been a lot of accretion and the vegetation is dramatically more seaward than where the original OHWM was pegged. The State felt that if individuals wanted land, they could pursue it in court. About four years ago, accretion was contested by the Department of Fish and Game at another local area. At issue was whether a person could riprap to protect his land. Mr. Menzies surveyed a meander line, in a non-vegetated region of the river. The Department of Fish and Game and the landowner brought other experts to refute his findings. The other experts, who were hydrologists, all located the OHWM more riverward than where Menzies pegged it. Ultimately, the commissioner of Department of Natural Resources and later, the Superior Court upheld his determination.

Mr. Menzies states that the OHWM should be measured at an ordinary time rather than a flood time, using the survey instructions that the State provided him for the Skagway River, the Mendenhall State Game Refuge and for Twin Lakes. He states that this is the point by which he differs with Oscar Graham's analysis.

Chair Dybdahl asked Mr. Menzies to discuss isostatic rebound and its impact on the water bodies. Mr. Menzies explained that isostatic rebound is unique to Southeast Alaska where the land is rising as the glaciers melt.

Mr. Kendziorek asked how often Lemon Creek floods. Mr. Menzies states that Lemon Creek is a violent creek with 10-year floods occurring two to four times in a year.

Mr. Kendziorek referred to page 1 of Mr. Menzies's handout, to what was called, "the most widely used definition of OHWM" utilized by the U.S. Supreme Court in 1851:

"The line found by examining the bed and banks and ascertaining where the presence and action of waters are so common and usual and so long continued in all ordinary years as to mark upon the soil of the bed a character distinct from that of the banks, in respect to the soil itself."

Based upon that, Mr. Kendziorek is prepared to conclude that the OHWM is along the bank area. Mr. Menzies referred to the photos take of Lemon Creek that were included in the staff report. Those photos depict a minor flood resulting from increased melting of the glaciers following several weeks of nice weather.

Mr. Kendziorek asked for clarification on what ‘mark upon the soil’ of the banks of Lemon Creek indicate that it where the usual and common presence of water occurs. Mr. Menzies referred to page 3 of his handout where the Department of Natural Resources definition states:

(23) "ordinary high water mark" means the mark along the bank or shore up to which the presence and action of the nontidal water are so common and usual, and so long continued in all ordinary years, as to leave a natural line impressed on the bank or shore and indicated by erosion, shelving, change in soil characteristics, destruction of terrestrial vegetation, or other distinctive physical characteristics;

This definition discusses shelving, change in soil characteristics, etc. Mr. Menzies pointed to slides of Lemon Creek and indicated areas where this can be seen. As Mr. Graham stated, there is accretion and build-up of gravel.

Mr. Bavard asked what the stated measurements provided by the applicant were: 55-feet or 102-feet? Mr. Menzies indicated that Attachment D (of the staff report) illustrates that 55-feet from the stream setback area measured in March 2000. In March 2001, the distance had increased to 65 feet from the stream to the center. In contrast, Mr. Graham measured from the corner of the building to somewhere in the vegetated area.

Mr. Kendziorek referred to the area just off of the applicant's building. Was that part of the meander line of the river? Mr. Menzies agreed. He conceded that there was likely water at the toe of the bank, but that was probably due to a flood condition. However, the true channel was farther away. He clarified that if he were under State of Alaska (Department of Natural Resources) survey instructions, he would be surveying further into the creek bed. If he were surveying for the Alaska Department of Fish and Game, from historical documents, Mr. Menzies stated that the survey criteria would be different yet, as they have different priorities. He used the Mendenhall State Game Refuge as illustrative example. The adjacent property owners may have had the right to accreted land, but the government had established an OHWM boundary 50 to 70 years previously. When Menzies conducted his survey, ADF&G specifically told him to measure to the original and historic boundary. He was not to reflect where the current OHWM was at during the course of his survey because the State wanted the accreted land.

Ms. Gladziszewski wanted clarification as to whether or not ADF&G had its own definition of OHWM. Mr. Menzies said that they had their own agenda. He added that if he was employed by Oscar Graham to measure the OHWM, he would provide the survey team instructions and that is how they would survey. However, surveyors normally follow instructions provided by the State of Alaska, Department of Natural Resources.

Ms. Gladziszewski noted that for the purposes of the Juneau Coastal Management Program, Mr. Menzies used the definition found in the Alaska Administrative Code, Title 11. Mr. Menzies stated that he used that definition as well as the historic methods for surveys.

Mr. Kendziorek asked staff what OHWM definition was utilized in this review. Mr. Graham said it was important to note that the provisions addressing the streamside setbacks emanate from the habitat sections of Title 49 of the CBJ Land Use Code. Therefore, CBJ's determination of OHWM would be more consistent to the Department of Fish and Game's definition. He added that he respected Mr. Menzies's opinion as a surveyor. However, there were two paradigms at play, one is based upon habitat protection, the other based upon survey data. As a regulator, when he is charged with protecting a resource, the setback is based upon the line of vegetation. His professional training as an aquatic resource planner and he has made several hundred determinations of OHWM that is based upon the very distinct line of vegetation along the stream corridor. In this case, identifying the OHWM of Lemon Creek in the vicinity of the subject building was an easy call.

Mr. Bruce has watched Lemon Creek over the years. He agreed that Lemon Creek is a very violent stream and he doubted whether any vegetation could establish itself in a flood plane area.

Mr. Kendziorek asked if the CBJ had a definition of OHWM in the Land Use Code. Mr. Graham said that the Code had no definition of Ordinary High Water, which was a significant deficiency in the Code. Hence, Mr. Graham stipulated in his report that he used a commonly used definition of OHWM to make his determination.

Mr. Bruce recalled a thorough treatment of that omission by Sylvia Kreel when the Planning Commission considered a Variance the vicinity of the subject building.

Mr. Bavard asked Mr. Menzies to address why the applicant was contesting the Allowable Use permit rather than pursue the Variance request which staff supported. Mr. Menzies said he was asked to address the methods of survey only. He added that Mr. Graham, as a regulator, clearly has a set of definitions based upon habitat considerations. Mr. Menzies speaks as a land surveyor who defines the marginal land to figure what land the government has the right to tax people for.

Mr. Bruce disagreed with Mr. Menzies characterization of the issue at hand. Rather, the applicant has relied, to his detriment, on a survey that established OHWM based upon criteria that Mr. Menzies has used for the past 40 years. This is in contrast to a new definition developed by CDD. Mr. Menzies responded that the definition utilized by Mr. Graham was developed by regulatory officials who are mainly habitat oriented. When he was retained by RSH to survey, since there was not a formally established meander line or OHWM in that area, he established it. As with the Skagway River, depending on the flood conditions, that line is often not the vegetated line.

Mr. Kendziorek asked for Mr. Van Dort to address the Commission on why the Variance request was withdrawn. Rather than the permit failing, Mr. Kendziorek hoped that the dilemma could be resolved with the passage of the Variance.

Jan Van Dort, explained that he did not disrespect the difference of opinion that the CBJ held. Rather, he was unhappy with the timing that the issue was raised. The problem began 100 years ago when the land was patented as a placer mineral claim. The land straddles streams where the bottom of the stream is also privately owned. Eventually, because of assorted setbacks, 70% of the property has been regulated out of use. Determining where OHWM was critical as Mr. Van Dort's project advanced. In fact, the whole project was based upon Mr. Menzies's determination of OHWM. Consequently, Mr. Van Dort feels great chagrin that the project has fallen apart since Mr. Graham's site visit on June 26, 2001. To demonstrate the inappropriate timing of the determination, Mr. Van Dort outlined the events that preceded the site visit:

Mr. Van Dort states that there is an inherent problem when a developer is unable to rely on the issuance of a Building permit or the approval of a plat map. He went on to explain the reasons he withdrew the Variance permit application. First, he thought there was an agreement between himself and Mr. Graham. Mr. Van Dort agreed in principal to accept Mr. Graham's determination of OHWM and they would apply for a Variance for 25-feet, which would allow the building to be built. He thought that that new line achieved by the Variance permit would cover all the construction development on the site. As they labored to reduce this agreement to paper, Mr. Graham indicated that he would not support a blanket Variance that covered the entire parcel.

It was then that Mr. Van Dort realized that he did not need a Variance because the OHWM as determined by Mr. Menzies was correct and that Aniakchak, Inc. had relied upon that determination. Further, it is patently unfair that he must revisit the issue because CDD is under new management, especially after investing over $700,000. He is willing to proceed with the Variance option, so long as it can be dealt with in one application and with one hearing. He regrets not knowing about the dispute earlier when things could have been changed. At the very least, he would have changed the direction that the road traveled. However, now the sewer lines are installed and it cannot be changed.

Mr. Kendziorek had several questions and comments for the applicant. First of all, if the situation could be resolved by issuance of a Variance, he suggested the issue was tabled until the Variance could resolve the unnecessarily contentious issue.

Mr. Graham indicated that a blanket Variance addressing the entire property doesn't fit well with the Variance criteria because the nature of the proposals are unknown. This issue was first raised during the Subdivision Review Committee’s review of the preliminary plat that the Planning Commission approved in August 2000. Mr. Graham agreed with that subcommittee. He understands that the applicant wants to maintain flexibility and to be assured that whatever is built will be fine. Unfortunately, the Variance criteria require that each specific project receive deliberate consideration. Initially, he supported the Variance for five buildings, because he knew what those five buildings would be for. However, to approve a Variance for development with an unknown use is difficult to address under the Land Use Code.

Mr. Kendziorek asked if the Planning Commission were obligated to approve a permit simply because the CBJ staff made specific representations to an applicant.

Chair Dybdahl interjected that the Commission is not obligated, however, in the past, the Commission has ruled in favor of the applicant when they had relied on decisions made by CDD staff. The benefit of the doubt has gone to the applicant.

Mr. Graham responded by urging that the matter be tabled so that the Commission was given the opportunity to carefully review the record to be certain that there had been assurances given.

Chair Dybdahl stated that the Commission also had the option to accept the survey line provided by Mr. Menzies.

Bill Heumann, 6000 Thane Road, has followed this issue as it has developed. He urges the Commission to consider that if a Variance is granted for the lot, they are conceding that Mr. Menzies line is incorrect. He didn't think that that point should not be conceded until it is clear what is truly being given up.

Public testimony was closed.

Mr. Bavard recalled from previous hearings that the road leading into the pit is itself within the 50-foot setback.

Planning Commission action:

MOTION: by Mr. Kendziorek to table Allowable Use permit 2001-00017 until the next meeting to give the applicant the opportunity to not have this permit fail but instead get a Variance so that the project can move forward.

Mr. Bruce was opposed to the motion unless the applicant supports it. He thought the applicant made a compelling case on the merits of the actual OHWM is. If the applicant agrees to the Variance, he concedes that his expert is not correct.

Mr. Bavard agreed with Mr. Bruce. The question is whether the Planning Commission relies on the expertise of Mr. Menzies or of Mr. Graham. In prior applications, the Commission has always relied on the state certified expert, be it civil engineer, mechanical engineer or land surveyor, etc. It can be no other way. Another issue is that this issue would never have come up if the applicant had not sought to increase the size of his building. As such, he is inclined to rely on the state certified expert.

Ms. Gladziszewski regretted the fact that the CBJ Land Use Code lacks a definition for OHWM. While Mr. Graham might be correct in another jurisdiction, right now, they have no alternative but to accept the state's definition. Mr. Menzies's 40 years experience is also compelling.

Mr. Kendziorek argued that even though the CBJ Land Use Code lacks a definition, CDD’s work is based upon habitat definitions predominantly from the Department of Fish and Game, rather than the Department of Natural Resource's definition. The habitat definition places the OHWM closer to where Mr. Graham places it. The charge for the CBJ is protecting the stream's habitat not protecting placer mining rights or land rights.

Mr. Bruce thought that it was preposterous that there were two distinct definitions and the burden was place upon the public to figure out which one applied at any given time. Whether the priority was for habitat or not, if the situation in question were Fish Creek, both Mr. Menzies and Mr. Graham would be in agreement. Lemon Creek is a different beast. The area in dispute is a flood plane and it is not OHWM. Mr. Bruce was convinced by his own experience with the Creek, that OHWM was within the stream itself. Agreeing to two rules validates Mr. Van Dort's argument that the public has the right to know what the rules are so that they can play by them.

Mr. Kendziorek withdrew the motion to table.

Ms. Gladziszewski interjected that the Commission needs to table the permit for other reasons as well. For example, staff has not addressed the problem of back-out parking.

Mr. Bavard has an issue with back-out parking and he proposed that a Condition be added to disallow it. The area is industrial where large construction vehicles are common.

Mr. Bruce suggested that the applicant respond to the issue of back-out parking.

Mr. Van Dort stated that back-out parking was a result of an agreement made with Cheryl Easterwood.

MOTION: by Ms. Gladziszewski to table USE2001-00017.

Ms. Gladziszewski explained that tabling the permit would afford staff the opportunity to review the project further and to provide recommendations.

Mr. Bruce asked Mr. Van Dort to comment.

Mr. Van Dort stated that he could accept a Condition to go back and work the parking situation out with staff.

Mr. Bavard asked if the applicant would accept a Condition eliminating the back-out parking.

Mr. Van Dort agreed to that Condition.

Ms. Gladziszewski asked staff if there were any other issues relative to the permit. Mr. Graham indicated that there were not. Ms. Gladziszewksi withdrew the motion to table.

MOTION: by Mr. Bruce to grant USE2001-00017, with the added Condition (No. 1) that there not be any back-out parking and that the applicant work with staff to arrive at an appropriate parking plan.

Mr. Bavard suggested that Findings No. 3 and No. 5 would be met through the testimony of Mr. Menzies.

Mr. Bruce agreed, with the finding that the applicant's identification of OHWM was the appropriate point to mark for the survey and that it was 55 feet outside of the 50-foot setback requirement, based upon Mr. Menzies's testimony and plat.

Ms. Gladziszewski asked about the streamside setback and the restoration of areas degraded by human activities. Mr. Graham said that the JCMP contained two provisions: one addressed setbacks and the other addressed the remediation or restoration of areas disturbed by human activities. Restoration of the area involves the removal of debris in the area that he considered to be the OHWM area and the planting of riparian vegetation within the 25 foot no disturb area.

Ms. Gladziszewski asked if the OHWM is as Mr. Menzies states, is there still need for restoration of areas degraded by previous human activity. Mr. Graham stated that based upon Attachment D (of the staff report), he was uncertain where the OHWM was. Working backwards from the setback, something could be established. In terms of restoring the area, the actual OHWM is has important implications.

Mr. Bruce thought that Attachment A established the OHWM, or the meander line to be in the middle of the accredited island.

Mr. Kendziorek asked staff if a Condition could be added that stating:

"the applicant can perform any restoration work necessary in the area as required by staff." Mr. Graham thought that an alternative might be to require restoration from the toe of the bank to a point 25-feet landward.

Mr. Bruce asked if the applicant agreed to that Condition. Mr. Van Dort agreed.

Mr. Graham suggested the language for Condition No. 2, "the applicant shall provide for restoration of human disturbance in the area located 25-feet landward of the toe of the bank."

Mr. Bruce accepted the language for Condition No. 2 as a friendly amendment.

Roll call vote:

Yeas: Bavard, Bruce, Dybdahl, Gladziszewski, Kendziorek, Sanford
Absent: Allington, Pusich

Chair Dybdahl called a five-minute recess at 10:15 p.m.


A conditional use permit for a 12-guest bed and breakfast.

Location: 10520 GLACIER HWY
Applicant: ROY BUEHLER

Staff report: Greg Chaney provided an overview of the project and location for the Planning Commission. The applicant proposes to build a 12-guest bread and breakfast facility on Glacier Highway across from Engineer's Cutoff. The subject property is a part of Hamilton Subdivision but its access is from a right of way connecting to Glacier Highway. The subdivision was platted in 1961 and it is zoned D1, transitioning to D10 zone. This type of subdivision would not be allowed under today's zoning code because the lots are smaller than 36,000 square feet and the lots are not connected to CBJ sewer. Mr. Chaney described the physical design of the proposed building, explaining that there would be a total of 10 parking spaces on the property. The upstairs contains four guest bedrooms and the downstairs contains caretaker's bedroom, large kitchen, foyer, dining room, office and garage. The applicant anticipates the typical occupancy to be 8, but they request a permit for 12 guests for added flexibility to accommodate people traveling with infants and children.

Mr. Chaney noted that this permit generated numerous letters in opposition. Frequently cited in the letters were traffic concerns. In response, Mr. Chaney requested that DOT evaluate the intersection of the Buehler's lot and Glacier Highway at Engineer's Cutoff. The sight distance was determined to be acceptable although not desirable. The project site contains a sight distance of 500 feet A minimum sight distance of 339 feet is required for this type of a road. A desired sight distance would be 1,180 feet. The neighbors were also concerned by potential noise resulting from large events or facility exceeding its capacity. A condition to the permit was added that addresses this issue. Other concerns focused on sewage. Mr. Chaney anticipates that a bed and breakfast facility may generate more sewage than a typical single family home and he recommends a condition to address that circumstance. Most importantly, if a civil engineer determines that the septic system cannot handle the projected load, the capacity of the bed and breakfast would be downgraded.

Neighbors were also concerned by the negative impacts to neighboring property values. Mr. Chaney referred to plans of the building and acknowledged that several adjacent homes would view a bank of windows. With limited available buffers, a condition requiring some fencing and some vegetation for screening was added. Mr. Chaney suggested that a single-family residence with the exact dimensions could be built on the property without restrictions. Even though this building is not desirable by the neighbors, it is not out of character of a residential development. Further, discussions with CBJ assessor’s office indicate that the presence of a bed and breakfast may actually increase the value of the adjacent homes.

Staff recommendation: That the Planning Commission adopt the Director’s analysis and findings and grant the requested Conditional Use permit. The permit would allow the development of a twelve-guest bed and breakfast. The approval is subject to the following Conditions:

  1. Prior to operation, the applicant shall submit a letter to CBJ Planning staff from a certified Alaskan civil engineer stating the proposed septic system is properly designed to accommodate a twelve (12) guest bed and breakfast. If the proposed septic system has a lower capacity than a twelve (12) guest bed and breakfast, the maximum occupancy of the facility will be reduced to match the proposed septic system’s capacity.
  2. Prior to operation, the applicant shall install, where appropriate, a six-foot (or higher) sight obscuring fence between the applicant’s property and developed properties to the northwest. It is further recommended that the applicant plant sight obscuring evergreen trees along this property line to help provide a long-term visual buffer.
  3. This permit is for a twelve (12) person bed and breakfast facility and does not include events or functions for more than 12 guests.

Mr. Bruce asked if CDD defined what a bed and breakfast is by the number of guests. Mr. Chaney indicated that three guests or fewer facilities do not qualify as a boarding facility and it is not regulated. If it is over six rooms, it is considered a hotel or motel and not allowed in this residential zoned area.

Mr. Pusich suggested that the effectiveness of the septic system must be revealed to CDD during the building permit process. He proposed that Condition No. 2 be modified to state,

  1. Prior to issuance of a building permit, the applicant shall submit a letter to CBJ Planning staff from a certified Alaskan civil engineer stating the proposed septic system is properly designed to accommodate a twelve (12) guest bed and breakfast. If the proposed septic system has a lower capacity than a twelve (12) guest bed and breakfast, the maximum occupancy of the facility will be reduced to match the proposed septic system’s capacity.

Mr. Bavard asked if the live-in operators of the bed and breakfast were included in the occupancy figure. If not, there would likely be 14 people in residence. It was important the engineer consider the maximum occupancy for guests as well as the operators in their analysis of the septic system.

Mr. Pusich agreed that the actual capacity of the septic system could be 16 people or more. He also asked Mr. Chaney to address the issue of subdivision restrictions on the building size. This issue was raised in Todd Cameron’s letter of opposition.

Mr. Chaney was not aware of any neighborhood covenants, however, covenants are private agreements enforceable only by civil action and not by CDD. Covenants are not considered by CDD in their review of developments.

Mr. Kendziorek asked Mr. Pusich whether an adequate septic system for 16 people could be designed in Hamilton Subdivision. Mr. Pusich was aware of past problems where existing systems nearly failed. The soil content and the high water table pose problems for typical residential septic systems and Casa del Sol Creek suffered environmental impacts from drainage flow failures in that area. He wasn’t specifically aware of what the Hamilton Street residents were doing to address the problem. Designing a system for 16 people in that area will be an expensive challenge.

Public testimony:

Roy Buehler, and his wife love Juneau and they have dreamed of operating a B & B since they retired. The location in Hamilton Subdivision was chosen primarily because the road access posed the least impacts to the surrounding neighbors. Mr. Buehler envisioned the maximum occupancy for the B & B at 8 people, but he requests 12 for flexibility. He did not want to turn away a couple with a baby, for example. B & B guests are typically, quiet, middle aged travelers who are looking for a quiet residential housing situation.

Mr. Buehler stated that he and his wife would be the operators of the B & B. Additionally, he had contacted the developer, Don Burford regarding the status of the original system and what possible upgrades could be added to increase capacity. Mr. Buehler is prepared to make upgrades and to provide screening to minimize the impacts of his structure on the neighbors. He was also willing to modify the design of the structure to minimize the number of windows that face the adjacent neighbors. He explained that only two second story window contain bedrooms where people may be visible. The other second story windows are designed to bring in light over the staircase. In closing, Mr. Buehler said that the more attractive the B & B is, the more desirable it is as a lodging facility.

Todd Cameron, 3011 Hamilton Street, strongly opposes the 12 guest B & B. He didn’t like the fact that the applicant purchased the residentially zoned lot knowing that only single-family homes and duplexes were allowed. Now Mr. Buehler seeks to change the zoning of the neighborhood for his own financial advancement. He states that if Mr. Buehler wanted a B & B, he should have purchased land where the zoning accommodated that. Mr. Cameron called attention to the Hamilton Street residents in attendance and he presented the Commission with a copy of the petition opposing the zoning change.

Lynn Gregg, a homeowner on Hamilton Street, lives in one of the three homes directly behind the proposed B & B. Ms. Gregg explained that when she purchased her home, the developer guaranteed her that the septic system was okay. However, experience has taught her that the septic system is quite flawed. Ms. Gregg lives alone except periodically when guests stay with her. The increased usage triggers an odor in the vicinity of the septic system. In addition the septic system issue, she explained that the proposed design of the B & B is completely out of character with the carefully planned uniformity of the Hamilton Street homes. Perhaps if the Buehler's planned to build a single family home with a similar design and color scheme, she would not oppose development. However, if the proposed building goes in, she will look out at a big red barn. Finally, because of the amount of food waste, a B & B will attract bears into the area. In closing, Ms. Gregg states that the intersection at Engineer's Cutoff will be more dangerous with the increase in traffic resulting from the B & B.

Mr. Kendziorek clarified that the B & B is permitted with a Conditional Use permit. As such, there is no zoning change necessary. Mr. Chaney added that the application is for a Conditional Use permit, which allows for a B & B in a D-1 zone, if appropriate. He noted that the Commission was reviewing the appropriateness of the proposal.

Sharon Cameron, 3011 Hamilton Street, states that the soil and septic systems in the area don't do as well as the engineer's think they do. Prior to purchasing their home in January, the Camerons inquired about how the lot behind them would be developed. They were assured that the lot was zoned, ‘residential.’ Eight months later, they now face the commercial development of the adjacent lot. She objects that the Buehler's seek to change the character of the residential neighborhood at the expense of everyone else's wishes. Ms. Cameron pointed to the bank of windows that would look out on her back yard. Were it a normal residential home not many people would be looking out of those windows. As a B & B with up to 14 occupants, there will be many people in the windows looking out onto her property. Had she known of the potential development, Ms. Cameron would not have purchased her current home.

Jim Gamblin, a resident of Hamilton Street, states that all three homes adjacent to the proposed B & B have septic problems. As well, the homes across the street have septic problems. The natural flow of rainwater directs water down the slope of the hill, which is why the septic problems exist.

Duane Gates, 3020 Hamilton Street, is one of three residents who purchased their homes this year. He objects to this particular B & B development because of the significant septic problems. During the rainy season, he can stand on the road and notice when his uphill neighbor flushes their toilet or take a shower. He can see the water draining through the yard. This additional water flow travels downhill and into the creek. He recently built a retaining wall to capture and divert spring water into the culvert. Mr. Gates believes that the B & B will be an overly large building with a color scheme that clashes with the other homes. He purchased their home on Hamilton Street because they liked the uniformity of the homes. He objects to the B & B because of the high number of guests and because the design of the building differs so radically that it will clash.

Mary Jane Gates, 3020 Hamilton Street, agrees with the comments made by her neighbor. She opposes the proposal because it will stick out like a sore thumb. She states that Hamilton Street homes have a higher property value because of the uniformity and neatness of the homes. Putting a large, colorful commercial building into their neighbor's back yard will bring down property values. Because the design of the building, it's not likely that it can ever be converted to a single family home. Rather, they face the possibility of its conversion into a halfway house or a boarding house in the future. Ms. Gates was concerned that because the Buehler's did not intend to be on site year round, problems with caretakers or the structure sitting vacant would arise. Because she and her husband were military, they anticipate selling their home in several years when they are transferred. With a huge red building in their back yard, she anticipates a 20 to 30% cut in their real estate value. If the building were a regular residential home that blended with the neighborhood, she would feel differently.

Mr. Sanford asked what the square footage of the Gates's home was. Ms. Gates said her home was a 4 bedroom, 2.5 bath home.

MOTION: by Mr. Kendziorek to continue the hearing of USE2001-000 beyond the 11:00 p.m. until it was concluded.

There was no objection to the motion and the meeting continued.

Mr. Buehler, stated that the septic systems degrade when they are not pumped often enough. He planned to pump it once a year to keep up with its maintenance. Mr. Buehler said he didn't know how to put people's minds at ease but he certainly would take his neighbor's comments under advisement.

Mr. Pusich asked if the applicant was willing to make changes to the color scheme to harmonize with the adjacent homes. Mr. Buehler said he preferred to build a cedar Pan Abode home with a durable metal roof rather than build a vinyl sided structure. The green roof color was chosen because it is commonly used in Juneau.

Mr. Pusich asked how the structure would be used in the off-season. Mr. Buehler explained that he and his wife were recently retired and they were transitioning up to Juneau from Atlanta. During the winter months, the Buehler's planned to travel and visit their four children who were scattered across the country. During the winter months, the B & B operation would be closed.

There were no more questions of the applicant and public testimony was closed.

Mr. Bruce asked staff if the Conditional Use permit were granted, could it later be converted to an apartment dwelling or a boarding house? Mr. Chaney stated that the home could always be a single-family residence where rooms can be let. CDD does not involve itself with who lives in a single-family residence. However, it cannot be rented as an apartment house. If the Conditional Use permit is approved, it can be utilized as a B & B, subject to the Conditions approved by the Commission, regardless of ownership.

Mr. Bruce asked if the B & B definition within the Land Use Code limits the guest’s duration of stay. Mr. Chaney stated that the Land Use Code itself does not regulate duration of stay; however, the bed tax impacts that issue. The facility could not be rented out as four separate housing units but it can be rented as one unit, or individual rooms can be rented by the day or by the week. Typically, a room that is rented by the month is rented at a much lower rate than a room rented by the day or by the week. That factor also governs how the facility is operated.

Mr. Bruce restated that if it is rented as a B & B, the operators are prevented from renting a room to an individual for six months. Mr. Chaney stated that the room could be rented by the day or by the week but not by the month.

Mr. Bavard asked what the largest permitted B & B in the CBJ was. Mr. Chaney thought that the Blueberry Lodge was the largest.

Planning Commission action:

MOTION: By Mr. Bruce that the Planning Commission accept staff’s analysis, findings and recommendations and approve USE2001-00030 with the modified capacity of ten (10) guests.

Mr. Bruce continued, speaking in support of the motion. He thought the Conditions adequately addressed the concerns of the adjacent property owners. Understanding that the neighbors had issues with their own septic systems, Condition No. 1, as modified by Mr. Pusich, adequately addressed concern. The applicant demonstrated his willingness to be a good neighbor and to conform the painting scheme to that of the neighborhood. Mr. Bruce added that the separate driveway entrance also provided some disconnect from the Hamilton Street.

Mr. Bavard proposed that Condition Nos. 1 and 3 be amended to change the maximum occupancy from 12 to 9. The applicant stated that he would be amenable to reducing the number to lessen the impact of the B & B on the neighborhood.

Mr. Bruce heard the applicant state that he was open to compromise. He suggested that the maximum occupancy is reduced to 10.

Ms. Gladziszewski supported the maximum occupancy be 10.

Mr. Bavard agreed and Mr. Bruce accepted this as a friendly amendment.

Mr. Kendziorek proposed Condition No. 4, that the color scheme is consistent with the neighboring properties as much as possible.

Mr. Bavard took exception to the language, "as much as possible." If the design calls for a cedar home, this Condition may be too vague to address that.

Mr. Kendziorek restated that, "as much as possible" did not disallow cedar, it referred to the accent trim coloration.

Mr. Pusich also wanted the project to harmonize with the neighborhood. However, the proposed structure is much taller and more colorful that its neighbors and a six-foot fence offers little mitigation to the visual impacts. As well, he was disturbed by the amount of people opposing the project. Mr. Pusich was also disturbed that staff did not know a septic system already existed on the site.

Mr. Chaney stated that staff knew a septic system was already in the ground. As a part of the grading permit, the developer installed a septic system for a single-family residence. To staff, that septic system was irrelevant if it were inadequate to meet the needs of the proposed structure. Hence the Condition requiring an inspection by a licensed engineer envisions that the applicant might need to start from scratch or upgrade the septic system as necessary. The applicant must comply with the professional opinion of the engineer.

Mr. Pusich stated that the area contained ground conditions and a high water table that are not conducive to operations of a leech field system. The scope of the issue engulfs the entire neighborhood and the B & B proposal will not help. Mr. Pusich was concerned by the health question as it stands on Hamilton Street.

Mr. Chaney reiterated that a civil engineer aware of the environmental conditions would not approve the system if it won’t handle the load. He added that septic system sophistication ranges from honey buckets to space stations. There are systems that could be deployed to meet the needs of the proposed B & B, costly though they may be. At some point, staff must rely on the professionalism of a licensed engineer to certify a system’s effectiveness.

Mr. Kendziorek asked if the neighborhood could organize an LID so that it can link up with the City sewage system.

Mr. Chaney replied that the City sewage lines do not extend to this portion of Glacier Highway. The subdivision, platted in 1961, includes densely spaced lots with septic systems. Current zoning would never allow for this type of development because septic systems do not work well when they are so close together.

Mr. Dybdahl asked if everyone understood the motion and the four Conditions:

  1. Prior to issuance of a building permit, the applicant shall submit a letter to CBJ Planning staff from a certified Alaskan civil engineer stating the proposed septic system is properly designed to accommodate a ten (10) guest bed and breakfast. If the proposed septic system has a lower capacity than a ten (10) guest bed and breakfast, the maximum occupancy of the facility will be reduced to match the proposed septic system’s capacity.
  2. Prior to operation, the applicant shall install, where appropriate, a six-foot (or higher) sight obscuring fence between the applicant’s property and developed properties to the northwest. It is further recommended that the applicant plant sight obscuring evergreen trees along this property line to help provide a long-term visual buffer.
  3. This permit is for a ten (10) person bed and breakfast facility and does not include events or functions for more than 10 guests.
  4. That the color scheme is consistent with the neighboring properties as much as possible.

Roll call vote:

Yeas: Bavard, Bruce, Dybdahl, Gladziszewski, Kendziorek, Sanford
Nays: Pusich
Absent: Allington

On a vote of 6 to 1, USE2001-00030 was approved.




Mr. Graham had several items to update the Commission on. First, in the blue folder, Mr. Graham pointed to a letter from the Department of Transportation relating to the project review conducted during the August 14, 2001 meeting. The letter’s author intended for it to be faxed but it was not and it arrived too late for its timely consideration.

The Malick appeal is the only item scheduled for the September 11, 2001 meeting.

The Totem Creek provided a revised site plan but additional supporting documentation is outstanding. Mr. Graham participated in a site visit with Randy Bayliss and found it very helpful to his understanding of the proposal.



Mr. Sanford raised the issue of Bauer Lane and the pressing need for a solution.

Mr. Graham proposed that staff draft a letter under the signature of the Planning Commission. Chair Dybdahl suggested that the letter be expedited.

Mr. Kendziorek commented that over a year ago, the Commission recommended modifications to the Comprehensive Plan relative to streamside setbacks. He wanted to see the issue specifically requested by the Commission is addressed. Mr. Graham shared that concern and commended Mr. Kendziorek for readdressing the topic.

Mr. Sanford asked how the Commission could trigger a heightened interest by the CBJ in the potential hazard to public health in Hamilton Subdivision.

Chair Dybdahl agreed adding that perhaps the situation could be remedied in the short term by requiring people to pump their septic systems annually.

Mr. Pusich explained that DEC typically is involved. The natural conditions of Hamilton Subdivision created problems for a conventional system. The soils are poor and the water table is high. He suggested that Terry Brenner or Deb Purvis could step in to address the health issue. It would be nice for that area to rate higher on the CIP list.

Mr. Chaney commented that it was unfortunate how the development of Hamilton Subdivision came about considering the difficulties with the septic systems. However, CBJ does not regulate the installation of septic systems. This is under the authority of DEC. He wasn't sure that CBJ could step in other than requesting that the area be moved up on the CIP list.

Chair Dybdahl agreed that this issue was within the purview of DEC, but if the City notes a problem, a letter urging DEC to address a problem might provide some impetus to DEC.

Mr. Bruce noted that Bonnie Brae is being addressed because of the attention it had received. He added that crossing Mendenhall River with the sewer main was hugely expensive. However, if there were a public safety issue then funding comes through more quickly.

Mr. Sanford added that the Commission would be remiss to hear about problems and not raise them with the appropriate individuals. He also stated that the definition of OHWM must be included into the Land Use Code before another issue comes before the Commission.

Mr. Pusich said that the method of determination must be established. Will the CBJ follow the DNR or the DF&G method?

Chair Dybdahl noted that it might be different depending on the type of stream.

Mr. Bavard received a call from a department head at DOT. He stated that the project was sent to CDD for review May 26 and it sat there until August 14, when it finally came up for review by the Planning Commission. Unanticipated funding was received and DOT tried to do the best thing possible for the road with the money they had. Otherwise they would not have taken on the project. Mr. Bavard regrets adding the Conditions now that he understands DOT's point of view.

Chair Dybdahl asked staff if they had received a letter stating such from Pat Kemp. Mr. Graham indicated that he had received the letter. The letter did not get to Mr. Graham until the day after the August 14 meeting but it was intended to be distributed to Commissioners prior to that hearing.

Mr. Bavard thought that the project review should have been expedited for a timely review. Mr. Graham recognizes that even with the adoption of the Area Wide Transportation Plan that roads still need to be improved with less than the necessary funding to provide the pedestrian amenities.

Mr. Kendziorek said that DOT should have had a representative present at the meeting to respond to the concerns of the Commission.

Mr. Graham reported that DOT provided emails to CDD prior to the August 14 hearing. Rather than presenting emails, Mr. Graham requested an official department response in writing in addition to a representative in attendance at the meeting. The letter came a day late and no DOT representative came to the meeting.

Ms. Gladziszewski asked if CDD had software necessary to post items in the hopper on the web. Could CDD list this information so that Commissioners and the public can have earlier notice? Mr. Graham indicated that situations develop at different rates. However, he would explore methods of providing this information to the Commission.

Chair Dybdahl commented that he was reluctant to involve the Commission with what type of colors they choose for their projects


MOTION: by Mr. Bavard to adjourn. Without objection, Chair Dybdahl adjourned the meeting at 11:35 p.m.